Smt D Mala vs Sri N V Prakash
2021 Latest Caselaw 1916 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 19TH DAY OF APRIL 2021

                           BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.980 OF 2019

BETWEEN:

Smt.D.Mala,
W/o Hanumanthappa,
Aged 61 years,
R/at No.5, Kings & Queens Apartment,
No.48/2, Channasandra Main Road,
Near Bank Colony,
Near Silicon City School,
Konanakunte,
Bengaluru-560 062.                             .. Petitioner

 ( By Smt.Tarjani Desai, Advocate
   for Sri S.Balakrishnan, Advocate )

AND:

Sri N.V.Prakash,
S/o Venkatarayappa,
Aged about 51 years,
R/at No.104, Building No.2,
KHB Colony,
Kengeri Upanagara,
Bengaluru-560 060.                             .. Respondent

 ( By Sri Dr.J.S.Halashetti, Advocate )

       This Criminal Revision Petition is filed under Section 397
read with Section 401 Cr.P.C. praying to call for records and set
aside the order of conviction dated 3.1.2019, convicting the
petitioner for the offence punishable under Section 138 of
                                                Crl.RP.No.980/2019
                               2


N.I.Act in C.C.No.127/2017, sentencing her to pay a fine of
Rs.7,20,000/-, in default of payment of said fine amount, she
shall undergo simple imprisonment for six months, out of the
said amount accused shall pay Rs.7,15,000/- to the
complainant/respondent as provided under Section 357 of
Cr.P.C. and Rs.5,000/- shall remitted to the State as fine, and
confirmed by the Hon'ble LVI Addl.City Civil & Sessions Judge,
Bengaluru (CH-57) in Crl.A.No.217/2019, judgment dated
4.7.2019 confirming the judgment of the trial Court and to
acquit the petitioner/accused for the offence punishable under
Section 138 of N.I.Act.

      This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
15.04.2021, coming on for pronouncement of orders this day,
the Court made the following:

                            ORDER

The present petitioner was accused in C.C.No.127/2017,

in the Court of learned XIII Addl.Chief Metropolitan Magistrate,

at Bengaluru, (hereinafter for brevity referred to as `trial

Court'). By its judgment dated 03.01.2019, the trial Court

convicted the accused for the offence punishable under 138 of

Negotiable Instruments Act, 1881 (hereinafter for brevity

referred to as `N.I.Act') and was sentenced accordingly.

2. Aggrieved by the same, the accused preferred a

Criminal Appeal in the Court of learned LVI Addl.City Civil &

Sessions Judge, Bengaluru, (CCH-57), (hereinafter for brevity Crl.RP.No.980/2019

referred to as the `Sessions Judge's Court') in Criminal Appeal

No.217/2019.

The appeal was contested by the respondent who was the

complainant in the trial Court. The Sessions Judge's Court by

its order dated 04.07.2019, dismissed the appeal, confirming

the judgment of conviction and order on sentence passed by

the trial Court dated 03.01.2019, in C.C.No.127/2017.

Aggrieved by the said judgment, the accused has preferred this

revision petition.

3. The summary of the case of the complainant in the

trial Court was that the accused being his family friend, had

obtained hand loan of `6 lakhs from him on 09.10.2014 to

meet her urgent family necessities with an assurance to repay

the same within a period of one and half years. After

completion of the said period of one and half years and on

several request and demands made by the complainant, the

accused issued three cheques bearing No.479382, for a sum of

`3 lakhs, bearing No.479383, for a sum of `2 lakhs and bearing

No.368518, for a sum of `1 lakh, all dated 07.05.2016 and

drawn on Corporation Bank, RBI Layout Branch, J.P.Nagar, Crl.RP.No.980/2019

Bengaluru, in favour of the complainant. When the cheques

were presented for their realisation, the same came to be

returned dishonoured with the Banker's shara as "payment

stopped" by the drawer. It is thereafter, he sent a legal notice

to the accused demanding the payment of the cheque amount.

However, the accused without meeting the demand made

therein, sent an untenable reply, which constrained him to

institute a criminal case against her in the trial Court for the

offence punishable under Section 138 of N.I.Act.

4. The accused appeared in the trial Court and contested

the matter through her counsel.

5. To prove his case, the complainant got examined

himself as PW-1 and got marked documents from Exs.P-1 to

P-15. From the accused side, accused got herself examined as

DW-1 and got marked documents from Exs.D-1 to D-6.

The trial Court after recording the evidence led before it

and hearing both side, by its impugned judgment dated

03.01.2019, convicted the accused for the offence punishable

under Section 138 of the N.I. Act and sentenced her to pay a

fine of `7,20,000/-, in default, to undergo simple imprisonment Crl.RP.No.980/2019

for a period of six months. Challenging the said judgment of

conviction passed by the trial Court, the accused preferred an

appeal in Criminal Appeal No.217/2019, before the learned

Sessions Judge's Court, which, after hearing both side, by its

impugned judgment dated 04.07.2019, dismissed the appeal

filed by the accused, while confirming the impugned judgment

of conviction and order on sentence passed by the trial Court.

Being aggrieved by the judgments of conviction and order on

sentence, the accused has preferred this revision petition.

6. The trial Court and Sessions Judge's Court's records

were called for and the same are placed before this Court.

7. Heard the arguments from both side. Perused the

materials placed before this Court, including the trial Court and

Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the trial

Court.

9. After hearing both side, the only point that arise for

my consideration in this revision petition is:

Crl.RP.No.980/2019

Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court?

10. It is not in dispute that the complainant and the

accused were known to each other since long time as

neighbours as has come out in the evidence of both PW-1 and

DW-1. It is also not in dispute that on 9.10.2014, the accused

has availed a loan of `6 lakhs from the complainant and the

said loan amount was transferred to the bank account of the

accused through RTGS. The same has been admitted in the

cross-examination of DW-1. It is also not in dispute that

accused is the drawer of the cheques at Exs.P-1 to P-3, totally

amounting to a sum of `6 lakhs and those cheques were issued

by the accused towards the repayment of the loan availed by

her from the complainant. The accused as DW-1 has made an

admission in that regard in her cross-examination. It is not in

dispute that those cheques when presented for realisation by

the complainant, came to be returned dishonoured with the

Banker's shara "payment stopped" by the drawer as evidenced

in Banker's endorsements at Exs.P-4 to P-9. It is also an

admitted fact that after dishonour of the cheques, the Crl.RP.No.980/2019

complainant got issued a legal notice to the accused as per

Ex.P-10 demanding the payment of cheque amount, however,

the accused did not meet the demand made in the notice, but,

sent a reply as per Ex.P-13. These undisputed, rather,

admitted facts forms a presumption in favour of the

complainant under Section 139 of N.I.Act about the existence of

legally enforceable debt, however, the said presumption is

rebuttable.

11. In order to rebut the presumption, the accused has

taken a contention that the cheques in question were issued as

a security and that the accused had cleared the entire loan

amount, still the complainant did not return the cheques. In

that regard, suggestions were made to PW-1 in his cross-

examination, which were not admitted as true by the witness.

Further, the accused who got herself examined as DW-1 also in

her examination-in-chief has reiterated the same defence which

were denied in her cross-examination. On the other hand, at

more than one place in her cross-examination DW-1 admitted a

suggestion as true that the cheques in question were issued by

her to the complainant towards the repayment of the loan

amount. Therefore, when the accused after admitting that she Crl.RP.No.980/2019

had availed a loan of `6 lakhs from the complainant and that

the cheques in question were issued by her to the complainant,

it is for her to show that she has cleared the loan, as such,

there existed no legally enforceable debt. In that regard, at

least, the accused has to make out a case of preponderance of

probabilities in her favour in order to rebut the presumption

formed in favour of the complainant.

12. The accused in order to strengthen her contention

that she had already cleared the loan taken by her, made

several suggestions to PW-1 in his cross-examination

suggesting that on 26.05.2015, 23.06.2015, 30.06.2015,

17.07.2015 and 28.07.2015, she had paid a sum of `25,000/-,

`35,000/-, `20,000/-, `35,000/- and `25,000/- respectively

through cheques to the complainant. Those suggestions though

were not denied by the complainant as PW-1, however, he

stated that those payments received by him were with respect

to different transactions. The said statement of PW-1 that

those payments were with respect to different transaction was

not specifically denied by the accused either in the further

cross-examination of PW-1 or in her evidence. Therefore, the

contention of PW-1 that the receipt of those five payments Crl.RP.No.980/2019

amounting to a sum of `1,40,000/- was towards different

transaction remained undenied.

13. The contention of the complainant that there existed

several loan transactions between him and the accused is

further corroborated in the examination-in-chief of the accused

as DW-1, wherein the accused herself has stated that, after

getting introduced to the complainant through one of her

neighbour, she had availed loan from the complainant, who was

introduced to her as a financier. The witness has further stated

that after she shifting her residence to a different address at

J.P.Nagar VII Phase, there were monetary transactions between

herself and the complainant. DW-1 herself in her examination-

in-chief has stated that on several occasions, she has availed

loan from the complainant and has returned them. In that

regard, she has produced her Bank Passbook and marked it as

Ex.D-1. She has also stated that she has credited some

amount to the account of the complainant to his Canara Bank

account, in which regard, she has produced three Bank challans

at Exs.D-2 to D-4. The said evidence of none else than the

accused herself, that too, in her examination-in-chief, itself

would go to show that there were several loan transactions Crl.RP.No.980/2019

between the complainant and the accused, wherein, the

accused was always a loanee and had availed several loans

from the complainant. This corroborates the undenied evidence

of PW-1 in his cross-examination that the five alleged payments

of amount between 26.05.2015 to 28.07.2015, in total

amounting to a sum of `1,40,000/-, are not towards the loan of

`6 lakhs availed by the accused from the complainant which is

the subject matter of the present case.

Further, DW-1 in her evidence has also stated that for the

loan transaction, she had maintained a Note book duly signed

by the complainant, however, the same was disputed by the

complainant. As such, the said Note book though was marked

as Ex.D-5, but, the same was subject to objection. Since the

accused neither overcome the objection raised by the

complainant nor could able to demonstrate as to how the said

Note book act as an evidence about the alleged clearance of the

loan of `6 lakhs, which is the subject matter of the present

case, the said Note book at Ex.D-5 would not enure to the

benefit of the accused. Therefore, the accused could not able

to demonstrate that she has cleared the loan of `6 lakhs availed

by her from the complainant.

Crl.RP.No.980/2019

14. Added to the above, the accused has also taken a

contention that she has cleared the loan towards the

complainant by paying the money to him, as well crediting

some amount to the account of wife of the complainant.

However, she has not produced any document to show that she

has credited any such amount to the alleged account of wife of

the complainant nor has shown any reason or placed any proof

to show that she was asked to or requested to make the

payment to the account of wife of the complainant. On the

contrary, DW-1 in her cross-examination has admitted a

suggestion as true that she is even facing criminal case in

LVI Addl.Chief Metropolitan Magistrate Court filed against her

by the wife of the complainant. It was also suggested to DW-1

in her cross-examination that she had availed a loan of

`10 lakhs and `15 lakhs from the complainant and his wife,

which means, apart from the complainant filing criminal case

against the accused, even his wife also has filed a case against

the very same accused with respect to monetary transaction.

Therefore, the contention of the accused that she had cleared

the loan by making payment to the wife of the complainant also

does not prove to be believable or probable. As such, the first Crl.RP.No.980/2019

argument of learned counsel for the petitioner that the entire

loan amount has been repaid by the accused is not acceptable.

15. Learned counsel for the petitioner as a last point of

argument contended that the statement of the bank account of

the accused at Ex.D-6 shows that under different installments,

in total, a sum of `1,80,000/- has been paid to the

complainant, as such, there is no legally enforceable debt to the

quantum as claimed by the complainant. The said argument of

learned counsel for the petitioner is not acceptable for the

reason that, admittedly except marking the said document at

Ex.D-6, no where the accused as DW-1 has stated as to what

the said document denotes. The said document which is in the

form of bank account extract of the accused with Corporation

Bank, RBI Layout, J.P.Nagar, Bengaluru, runs into several

pages with large number of debit and credit entries therein.

By looking at the entries mentioned therein showing several

withdrawals, payments, credits etc., it cannot be deduced that

any particular sum, on any particular day, was made to the

complainant by the accused. Merely by looking at the name of

the complainant in those statements, it cannot be inferred that

those are the payments made by the accused to the Crl.RP.No.980/2019

complainant and complainant alone, that too, towards the

alleged repayment of the loan transaction in question.

Furthermore, admittedly the said document was not confronted

to PW-1 in his cross-examination. Had the said document been

confronted to PW-1 in his cross-examination, he would have

given his explanation about the alleged entries, provided his

attention were drawn to those entries in the said statement.

Since none of those exercise is done by the accused, merely by

production of the said statement, which is not self-explanatory

regarding the alleged payment said to have been made in

favour of the complainant, it cannot be held that the accused

had made substantial repayment of the loan to the

complainant. As such, the contention of the learned counsel for

the petitioner on the said point is also not acceptable.

16. Barring the above, learned counsel for the petitioner

has not canvassed any points worth to be considered. Both the

trial Court, as well as the Sessions Judge's Court since after

having appreciated and analysed the evidence placed before

them in their proper perspective, have come to a correct

finding of holding the accused guilty of the alleged offence, I do

not find any perversity, illegality or irregularity in the said Crl.RP.No.980/2019

finding of the trial Court and the Sessions Judge's Court. As

such, the judgment of conviction does not warrant any

interference at the hands of this Court.

17. The trial Court has sentenced the accused to pay a

fine of `7,20,000/-, in default of payment of fine amount, to

undergo simple imprisonment for a period of six months. It has

further ordered that, out of the said fine amount, the accused

shall pay `7,15,000/- to the complainant as compensation

under Section 357 of Cr.P.C. and remaining `5,000/- to be

remitted to the State as fine.

It is the sentencing policy that the sentence ordered must

be proportionate to the gravity of the proven guilt. In the facts

and circumstances of the case, I am of the view that the

sentence of fine imposed on the accused is slightly on the

higher side. As such, it is only to modify the said sentence, the

intervention of this Court is warranted in the impugned

judgments.

18. Accordingly, I proceed to pass the following order:

Crl.RP.No.980/2019

ORDER

The Criminal Revision Petition is partly allowed.

Though the judgment of conviction passed by the learned

XIII Addl.Chief Metropolitan Magistrate, Bengaluru, in

C.C.No.127/2017, dated 03.01.2019, holding the accused guilty

of the offence punishable under Section 138 of N.I.Act, which

was confirmed by the learned LVI Addl.City Civil & Sessions

Judge, Bengaluru (CCH-57), in Criminal Appeal No.217/2019,

dated 04.07.2019, is hereby confirmed, however, the order on

sentence passed by the learned XIII Addl.Chief Metropolitan

Magistrate, Bengaluru, in C.C.No.127/2017, dated 03.01.2019,

is modified and order on sentence of payment of fine is reduced

and fixed at `6,50,000/-. Consequently, the entitlement of the

complainant as compensation from out of the fine amount is

also reduced from `7,15,000/- to `6,45,000/-, however, the

amount of `5,000/- payable to the State as fine remains

unaltered. The default sentence ordered by the trial Court

ordering the accused to undergo simple imprisonment for a

period of six months in case he commits default in payment of

the fine amount remains unaltered.

Crl.RP.No.980/2019

Registry to transmit a copy of this order to both the trial

Court as also the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

bk/